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Office of the Attorney General - State of Texas John Cornyn |
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October 10, 2001 Mr. James L. Hall
OR2001-4589 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 153076. The Texas Department of Criminal Justice (the "department") received a request for a copy of an internal affairs investigation. You claim that the requested information is excepted from disclosure under sections 552.108 and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We begin by noting that the submitted information contains two polygraph reports. Section 1703.306 of the Occupations Code governs the release of polygraph information and provides: (a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than: (1) the examinee or any other person specifically designated in writing by the examinee; (2) the person that requested the examination; (3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or control a polygraph examiner's activities; (4) another polygraph examiner in private consultation; or (5) any other person required by due process of law. (b) The board or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information. Occ. Code § 1703.306. This provision prohibits the release of polygraph information to anyone other than those individuals listed in subsection (a). In this instance, it does not appear that the requestor has a right of access to the polygraph reports. Accordingly, we conclude that the polygraph reports are confidential pursuant to section 1703.306 of the Occupations Code and must be withheld under section 552.101 of the Government Code.(1) With respect to the remainder of the submitted information, we address your argument under section 552.131 of the Government Code. First, we note that section 552.131 of the Government Code has been renumbered by the Seventy-seventh Legislature as section 552.134.(2) Section 552.134 relates to information about inmates of the department and provides in relevant part: (a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department. Section 552.029 states: Notwithstanding . . . Section 552.134, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under Section 552.021: . . . . (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate. Gov't Code § 552.029(8). Section 552.134 is explicitly made subject to section 552.029. Under section 552.029, basic information regarding the death of an inmate in custody, an alleged crime involving an inmate, and an incident involving the use of force is subject to required disclosure. The requested documents relate to an incident involving the use of force against a TDCJ inmate. Accordingly, while TDCJ must generally withhold the submitted information under section 552.134, it must release basic information regarding the use of force incident pursuant to section 552.029(8). Basic information includes the time and place of the incident, names of inmates and TDCJ officials directly involved, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. In summary, you must withhold the submitted polygraph reports under section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code. You must withhold the remainder of the submitted information under section 552.134 of the Government Code, with the exception of basic information about the use of force incident. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Dept. of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Nathan E. Bowden
c: Lieutenant Tanya Franklin
Footnotes 1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. 2. See Act of May 22, 2001, 77th Leg., R.S., H.B. 2812, § 21.001(53) (to be codified at Gov't Code § 552.134). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |